In the last oral argument of the week, in Weaver v. Massachusetts, the court confronted two seemingly incompatible lines of doctrine. When there is a “structural” error in a criminal trial, prejudice is often irrebuttably presumed and a new trial is ordered. But when a defendant alleges that his lawyer was constitutionally ineffective, he must prove prejudice before his conviction will be reversed. These doctrines collide when a structural error occurs and a lawyer’s ineffective assistance leaves it uncorrected. Which rule – prove prejudice or presume it — should apply?

After an hour of argument yesterday, the justices seemed divided and genuinely undecided. Justices Elena Kagan and Samuel Alito repeatedly staked out opposite positions, while Chief Justice John Roberts and Justices Anthony Kennedy and Stephen Breyer appeared to be still searching for answers. Toward the end, Breyer succinctly expressed the Solomonic quandary: It may be true that precedent does not yield a clear answer, “but if we’re cutting this child in two,” perhaps a new solution is required.

A lawyer’s mistake leads to constitutional error

As previewed, when Kentel Weaver’s jury was being selected, the courtroom was already overcrowded with potential jurors, so Weaver’s mother and other supporters were told the courtroom was “closed” when they arrived. When they later told Weaver’s lawyer about this, he raised no objection; he conceded post-trial that he did not understand it was a violation. After the jury was chosen the next day, the courtroom was open to all. But the damage – the error of denying a “public” criminal proceeding – was done.

The Supreme Court has repeatedly ruled that closing a criminal courtroom to the public is a “structural” denial of the Sixth (and First) Amendment right to public trial. This is true even for pretrial motions hearings and the initial step of jury selection. So in this case, the lawyer’s failure to object to the closed courtroom during voir dire was unreasonably deficient. And that deficiency led to the constitutional error being uncorrected and unaddressed, until Weaver filed an ineffective assistance claim years later (timely under Massachusetts rules).

The Massachusetts courts chose the prejudice rule

Weaver’s ineffective assistance claim was rejected at the trial court level, and the Massachusetts Supreme Judicial Court agreed on appeal. The SJC accepted that a public-trial error had occurred, and that public-trial violations have been described as “structural” so that prejudice is presumed and a new trial is generally ordered. But Weaver was not alleging a direct public-trial violation (apparently because the failure to object might constitute “forfeiture” under Massachusetts law – and as some of the justices noted yesterday, it also might not be “plain error” under U.S. Supreme Court precedent). Instead, Weaver was alleging a different Sixth Amendment violation: ineffective assistance of counsel. Because the Supreme Court has been very clear that prejudice must be demonstrated before a conviction will be reversed for ineffective assistance – and Weaver had not alleged prejudice at all – the Massachusetts court denied his claim and affirmed his murder conviction.

The justices seem genuinely undecided

Just as in the “old” days, when Justice Antonin Scalia was on the court, this case may turn on Justice Anthony Kennedy’s vote – and Kennedy said very little to indicate where he might land. But as discussed below, there may be some broader ground for resolution. It seems that “new law” is likely to be made however the court decides.

Justice Ruth Bader Ginsburg asked the first question, of Weaver’s lawyer, Michael Kimberly: “[D]o you make any distinctions between kinds of errors that we have called structural?” Kimberly stuck to an absolute position, saying “no.” But Roberts and others seemed interested in an argument that perhaps distinctions should be made.

As suggested in my preview, Roberts and others also appeared to wonder whether there was a structural error here at all; Justice Neil Gorsuch suggested that a “triviality exception” might apply. But Ann O’Connell, arguing for the U.S. solicitor general as a “friend of the court” on behalf of Massachusetts, noted that the case had been litigated “on the assumption” that a Sixth Amendment public trial violation occurred (although she gently suggested that “if this was our own case” she might not concede it). Meanwhile, while arguing that no prejudice should be required, Kimberly also offered some realistic examples of how the absence of any of Weaver’s supporters in the courtroom during jury selection really could have prejudiced his trial.

Arguing for Massachusetts, Assistant State Attorney General Randall Ravitz calmly stuck to his brief, and continued its low-key style. The court seemed to save its more difficult questions for O’Connell, and her able responses demonstrated why the solicitor general has approvingly been called the court’s “tenth justice.”

Arguing “through” the lawyers, as Gorsuch pursued

Providing the starkest presentation of opposing viewpoints on the question presented, Kagan and Alito twice whipsawed the lawyers on both sides. Alito asked, “there is no violation of the right to counsel based purely on deficient performance, … right? … [T]he prejudice prong has to be satisfied?” But Kagan quickly responded, “we’ve said over and over again that you can’t prove prejudice” for structural errors because “it is so speculative as to whether this fundamental defect in the trial process caused error.” Thus the polar positions were staked out, and I haven’t seen a better example of the justices arguing with each other “through” the lawyers. Those dialogues, however, merely frame the question. They do not resolve it.

Also, as was consistently true over his first three days of oral argument, Gorsuch demonstrated that he is a confident and dogged questioner. At one point he pursued Kimberly over several minutes, while imploring the advocate to “please, just stick with me.”

Is an innovative solution available in the end?

Interestingly, Gorsuch, Sotomayor, and most clearly Breyer, during the rebuttal, all appeared to suggest that the opposing lines of doctrine might be “harmonized” by applying a standard from the “fourth prong” of the plain error rule of Olano v. United States for “unpreserved” errors. Why not ask whether a structural error that results from ineffective assistance “seriously affects the fairness, integrity, or public reputation of judicial proceedings,” before overturning a conviction? Gorsuch pursued Kimberly on this point beyond the red light signaling the end of Kimberly’s argument time, so a complete answer was not presented (and indeed, might not be possible). But this innovative suggestion might attract more than just a divisive 5-4 majority, and perhaps provide some realistic structure for addressing a difficult, but unfortunately recurrent, problem in ineffective assistance cases.

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On Friday, April 3, Justice Stephen Breyer spoke to students at the United Nations International School in New York City. The justice gave his talk remotely via video call, while self-quarantining at home in Massachusetts with his wife and daughter.